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Judgment
The petitioner challenges the impugned judgment dated 12th
December, 2013 passed by Additional Sessions Judge, Fast Track 4th Court,
Diamond Harbour in a criminal appeal being preferred challenging the
judgment and order of conviction dated May 31, 2010 passed by the learned
A.C.J.M., Diamond Harbour in complaint case No. 04 of 2007.
According to the petitioner, the complainant and his wife purchased
700 shares of Morgan Stanley Growth Fund in 1995 and shares certificates
were duly issued in their favour. It has been alleged in complaint case that
his wife was eager to dispose of the said shares and approached the accused
for selling the shares because they did not have any Demat Account, which
is necessary for sale and purchase of the shares. The accused was having a Demat Account. The complainant further stated that his wife put her
signature on shares transfer form on good faith and handed over the same
to the present petitioner. The accused informed the complainant and his
wife that the sale proceeds of the share was Rs.25,000/- and after deduction
the complainant is supposed to get Rs.25,100/-. The accused did not pay
the same by cash but towards the discharge of his liabilities he had issued a
cheque bearing No.259306 dated June 24, 2006. Since the cheque was
dishonoured by the bank concerned, so after observing all legal formalities
he has initiated a case under Section 138 of N.I. Act against the petitioner.
Learned Trial Court on appreciation of evidence found him guilty
and convicted the present petitioner under Section 138 of N.I. Act and
sentenced him to undergo rigorous imprisonment for two months and also
sentenced to pay a fine of Rs.5,000/- in default rigorous imprisonment for
one month and also awarded compensation of Rs.1 lakh in favour of the
complainant. That finding of the learned Trial Court was challenged before
the First Appellate Court. The said Court heard argument of both sides and
on appreciation of evidence and after proper scrutinization of the record
confirms the said finding of the learned Trial Court, but has modified the
conviction by awarding Rs.50,000/- instead of Rs.1 lakh as compensation.
Other parts of the sentence of the learned Trial Court remain undisturbed.
At the time of hearing, learned Counsel appearing on behalf of the
petitioner vehemently argued that the findings of both the learned Courts
below are unjustified and without any basis. According to him, the cheque
was issued by him not in discharge of any debt. He further stated that sale proceeds of shares were given to the complainant and his wife, who had put
their signature in the said certificate mentioning that they had received the
dues. Both the Courts below overlooked this issue and as a result came to a
wrong finding. He further submitted that it is the duty of the complainant to
prove his case first i.e. there was any debt, which the accused petitioner was
supposed to discharge. Only then the duty casts upon the accused to show
that the cheque was issued as a security and not in terms of any debts or
liabilities. In support of his such contention he has relied on a decision of
reported in ''Supreme Today'' in connection with Criminal Appeal No. 261 of
2013, and also an unreported decision in K.Subramani -vs.-K.Damodara
Naidu in Criminal Appeal No. 2402 of 2014. He has also argued that this
Court has every power or authority to appreciate the evidence, if it is found
perverse. In support of his such contention he has referred to a decision
rendered by the Hon''ble Apex Court in connection with Ved Prakash
Gupta- vs.- Delton Cable India (P) Ltd ., reported in 1984 AIR 914,
Navinchandra Sakherchand Shah -vs.- Ahmedabad Co-operative
Stores Ltd . reported in (1978) 0 GLR 108, (1979) ILLJ 60 Guj, regarding
what is debt or security. He has relied on a decision of this High Court in
C.O. 4051 of 2012. As against this learned Counsel appearing on behalf of
the opposite party relied on a decision of Hon''ble Apex Court in Parminder
Singh -vs.-Gurpreet Singh, passed in Civil Appeal No. 3612 of 2009.
Let me consider the first limb of argument of the accused petitioner.
That interpretation has to be considered along with the factual aspects of
this case. The defence case as it appears to me from the evidence of the petitioner (D.W. 1) that he has accommodated a loan as prayed for by the
complainant, and for which he has issued a cheque in favour of the
complainant. On a certain date, the accused petitioner asked the
complainant to come and at that date complainant acceded to his beckon.
Thereafter the petitioner had issued the cheque. He also categorically taken
a defence that at the relevant point of time one Banomali Mondal (D.W.2),
was present. That Banomal Mondal told him that the complainant is in the
habit of taking loan but never repaid. Relying on his (D.W.2) such statement
he has intimated the bank manager to ''stop payment''. Therefore, the defence
of the accused petitioner is such that he never issued the cheque in relation
to his debt to discharge his any liability and ultimately instructed for non-
payment on the basis of statement of Banomali Mondal (D.W.2). In this
juncture evidence of D.W. 2 has to be placed under a lens. This P.W. 2 is an
employee of the accused petitioner. In his evidence he stated that the
accused had issued a cheque in favour of the complainant and he himself
requested his master (D.W.1) not to accommodate such loan because the
complainant usually does not repay the loan. In course of cross-
examination, this D.W. 2 categorically stated he does not know the name of
father of the complainant nor he could say the name of the school wherein
the complainant works as a teacher. He even did not know whether till that
day the said complainant was a teacher or not. He could not say from whom
the complainant took loan in earlier occasions. He could not say who are the
''many of his persons''. Therefore, if one scrutinizes his evidence meticulously
in that case one would find that there is no substance in his evidence. Even
he did not tell how he get himself acquainted with the complainant and from whom he came to know that the complainant used to take loan from many
persons and never paid it. Therefore his evidence is not a creditworthy.
Since he is an employee of the accused petitioner, so certainly he had made
some embellishment and embroideries so that his master can save his skin
from the net of law. D.W. 3 has stated that value of the shares, which were
sold by the complainant and his wife in favour of the wife of the accused
petitioner, was Rs.18,900/- and revenue was paid at Rs.95. If we consider
this aspect that the cheque of Rs.25,100/- was issued as consideration of
the said shares then why a cheque amounting to Rs.25,100/- was issued
instead of Rs.18,900+95. This aspect has not been clarified by the accused
petitioner.
On perusal of the decisions cited above the ratio is such that if the
complainant reasonably discharges the burden that the payment was made
towards a lawful debt in that case duty casts upon the accused petitioner to
discharge the burden in terms of Sections 118 and 139 of the N.I. Act. Here
the complainant had been able to show that the cheque was issued in
discharge of a debt but the said cheque was bounced. Therefore, the
accused petitioner has to discharge his liability. The burden of proof as per
Sections 118 and 139 of the N.I. Act is upon the accused to show that the
cheque had not been issued towards discharge of a legal debt but was
issued by way of security or any other reason on account of some business
transaction. The petitioner wanted to establish that value of the share was
paid. The complainant who endorsed the same by putting his signature.
That endorsement was for Rs.18,900/- dated 21.09.2005 but cheque was issued for Rs.25,100/- on 24.06.2006. There is no reasonable explanation
as to why the cheque amount exceeds to the sale price of the shares as to
why the cheque was issued after nine month. The question of granting loan
has been disbelieved by the learned Trial Court as well as by the First
Appellate Court on proper appreciation of evidence. Usually High Court
sitting in a criminal revisional jurisdiction does not like to re-appreciate the
evidence unless there is a travesty of justice. Yet this Court endeavoured the
same and found that both the Courts below have come to a correct
conclusion. The opposite party has relied on an unreported decision
Parminder Singh -vs.- Gurpreet Singh (Civil Appeal No . 3612 of 2009) and
concluded that the findings of both the Courts below are binding not only on
High Court but also on the Supreme Court. I have gone through the
judgment although there are catena of decisions that in case of travesty of
justice, High Court can look to the evidence.
Having regard to the facts and circumstances of this case and on
appreciation of evidence as well as the documents which are marked
exhibits, I am of the view that the impugned judgment passed by the
Additional Sessions Judge, Fast Track 4th Court Diamond Harbour does not
call for any interference. Bouncing of a ball is a fun for a child but bouncing
of a cheque is not a fun rather it invites a person to go to prison.
Accordingly, the Criminal Revisional Application is dismissed.
Let a copy of this judgment and the L.C.R. be sent to the learned
Court below for information and taking necessary action in accordance with
law.
Urgent certified photocopy of this Judgment and order, if applied
for, be supplied to the parties upon compliance with all requisite formalities.